Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator Robert E. Nagle filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Regulations. The Union filed an opposition to the Agency's
exceptions.

The Arbitrator sustained in part, and denied in part, a grievance
challenging the Agency's denial of official time to union officials for the
purpose of attending two separate legislative conferences. As relevant here,
the Arbitrator ordered the Agency to adjust the leave records and to provide
backpay to any of those employees who were charged leave without pay.

For the following reasons, we conclude that the Agency has not
established that the award is deficient under section 7122(a) of the Statute.
Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievants are union representatives at several of the Agency's
regional offices. In both 1996 and 1997, the Union sponsored national political
and legislative conferences. Prior to the conferences, the grievants requested,
and the Agency denied, official time and "no-cost travel orders."(1) Award at 3. In denying the
requests, the Agency stated that the information supplied by the Union did not
support the authorization of official time and no-cost travel orders. According
to the Arbitrator, the Agency denied the 1996 request because the conference
agenda outlined "more detail regarding the breakfasts, receptions[,] and
parties that were to be held than for the workshops." Award at 5.

The Union filed several grievances. Because the parties were unable to
resolve the grievances, the grievances were consolidated and the matter
proceeded to arbitration. In the absence of a stipulation by the parties, the
Arbitrator framed the issue as follows:

Did the Social Security Administration violate the National Agreement
by denying official time and no-cost travel orders to Union officials to attend
the 1996 AFGE Political and Legislative Conference and the 1997 AFGE
Legislative Conference? If so, what shall be the remedy?

Id. at 2.

Relying on Authority precedent, the Arbitrator found that "lobbying
activities may be representational in nature and thus qualify for official
time." Id. at 20 (citing U.S. Department of the Army, Corps of
Engineers, Memphis District, Memphis, Tennessee and National Federation of
Federal Employees, Local 259, 52 FLRA 920 (1997) (Corps of
Engineers) (Member Armendariz dissenting in part)). The Arbitrator also
found that the Agency did not contend that official time for "lobbying is not
mentioned in the [parties'] [n]ational [a]greement," but rather contended only
that "official time . . . is contingent upon a showing that the lobbying
is for appropriate representational purposes." Id. In this regard, the
Arbitrator noted that "official time could be available for convention
activities . . . but only to the extent that they involve labor relations or
representational matters, rather than internal union matters." Id.See alsoid. at 21.

With respect to the 1996 conference, the Arbitrator determined that the
"basic purpose . . . was to have . . . [union representatives] lobby members of
Congress with respect to legislative issues that directly affect the working
conditions of the Federal employees." Id. at 22. The Arbitrator decided
that the Union's lobbying and related training constituted "representative
functions which should qualify for official time." Id. However, the
Arbitrator stated that the Political Action Committee(PAC)-related activities,
as well as the time spent endorsing the President and Vice President for
reelection, did not qualify for official time. The Arbitrator concluded that
four working days, "plus necessary travel time during normal working hours,"
less 2 hours for the non-representational activities that occurred during
working hours should qualify for official time. Id. at 23.

With respect to the 1997 conference, the Arbitrator also determined
that the purpose was to prepare the union representatives to lobby Congress on
representational issues. The Arbitrator found that all of the PAC-related
activities and all of the Union's internal business was conducted outside of
normal working hours. As such, the Arbitrator concluded that the grievants were
entitled to 3 days of official time plus necessary travel time.

Based on the foregoing, the Arbitrator awarded the grievants official
time to attend the conferences. However, noting that the Union could "have been
more helpful in justifying" its requests for official time, the Arbitrator
denied the Union's request for additional costs incurred as a result of the
Agency's refusal to issue no-cost travel orders. Id. at 25.

III. Positions of the Parties

A. Agency

The Agency challenges the Arbitrator's award on four grounds. First,
the Agency claims that the Arbitrator "exceeded his jurisdiction and went
beyond what should have been decided, and/or considered, based on [his] framing
of the issue." Exceptions at 1-2. According to the Agency, the Arbitrator based
his award on an evaluation of information that was not available to management
at the time it denied the Union's request for official time. The Agency argues
that "the inquiry inappropriately moved from the question of management
violating the agreement based upon what it knew at the time of the requests, to
a question of what actually took place at these conferences." Id. at 3.

Second, the Agency contends that the Arbitrator's award is based on a
nonfact. In this regard, the Agency challenges the Arbitrator's conclusion that
the Union adequately justified its request for official time. The Agency
maintains that the Arbitrator "in effect admitt[ed]" that the Union did not
adequately justify its request for official time at the time the Agency denied
the request and, therefore, "[a]ny other basis for" the Arbitrator's conclusion
that the Agency "violat[ed] . . . the National Agreement [is] a nonfact."
Id. at 5.

Third, the Agency asserts that the award "violates the National
Agreement [A]rticle 25, section 6."(2)Id. at 2. In the Agency's view, the Arbitrator "went
beyond the contractual requirements" by determining that the grievants were
entitled to official time, even though they had not adequately justified their
request to the Agency. Id. at 5.

Finally, the Agency states that "it is clear from the evidence that
lobbying was being intertwined with partisan political activities" based on the
"political overtones of PAC meetings, PAC breakfasts, rallies, reelection
speeches, and political action workshops" during the legislative conferences.
Id. at 5-6. In this regard, the Agency argues that, by authorizing
official time for all but 2 hours of the conferences, the award violates the
Hatch Act and 18 U.S.C. § 1913.

B. Union

The Union asserts that "the Agency's appeal is merely a disagreement
with the arbitrator's findings in this case." Opposition at 2. The Union claims
that the Agency has "no basis for asserting that [the Arbitrator] was limited
by what management knew at the time it originally denied the official time."
Id. In this regard, the Union maintains that the Arbitrator "had the
authority to decide denovo," based on the evidence presented
during arbitration, whether the Agency properly denied the official time
request. Id. at 3. Moreover, the Union contends that the Arbitrator's
award is consistent with the Authority's decision in Corps of Engineers
in which the Authority concluded that certain lobbying activities are
permissible under the Hatch Act and 18 U.S.C. § 1913.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

Arbitrators exceed their authority when they fail to resolve an issue
submitted to arbitration, resolve an issue not submitted to arbitration,
disregard specific limitations on their authority or award relief to those not
encompassed within the grievance. SeeAmerican Federation of
Government Employees, Local 1617 and U.S. Department of the Air Force, An
Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA
1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's
formulation is accorded substantial deference. SeeCorps of
Engineers, 52 FLRA at 924.

The record shows that the parties did not stipulate the issue to be
resolved, and the Arbitrator framed the issue as whether the Agency violated
the parties' agreement by denying official time to the Union representatives
for the purpose of attending the legislative conferences. There is no dispute
that the grievance concerned the subject of whether the Union representatives
were entitled to official time under the parties' collective bargaining
agreement. In addition, the award is directly responsive to the issue as framed
by the Arbitrator. Therefore, the Agency has failed to demonstrate that the
Arbitrator exceeded his authority. SeeU.S. Department of Health and
Human Services, Social Security Administration, Region X, Office of Hearings
and Appeals and American Federation of Government Employees, Local 3937,
49 FLRA 691 (1994). Accordingly, we deny this exception.

B. The Award is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party
must demonstrate that the central fact underlying the award is clearly
erroneous, but for which a different result would have been reached by the
arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver,
Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA
589, 593 (1993) (Lowry). However, the Authority will not find an award
deficient on the basis of an arbitrator's determination on any factual matter
that the parties disputed at arbitration. Id. at 594 (citing
Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). In
addition, an arbitrator's conclusion that is based on an interpretation of the
parties' collective bargaining agreement does not constitute a fact that can be
challenged as a nonfact. SeeNational Labor Relations Board and
National Labor Relations Board Professional Association, 50 FLRA 88, 92
(1995).

The Agency asserts that the Arbitrator's conclusion that the Agency was
not justified in denying the Union's request for official time is a nonfact
because the Arbitrator based his conclusion on facts other than those known to
the Agency at the time the requests for official time were denied. The
Arbitrator's conclusion that the Union was entitled to official time resulted
from the Arbitrator's interpretation of the parties' agreement. Therefore, it
does not constitute a fact that can be challenged as a nonfact. Seeid.; see alsoU.S. Department of the Navy, Naval Training
Center, Orlando, Florida and International Union of Operating Engineers, Local
673, 53 FLRA 103, 106 (1997); U.S. Department of the Air Force, San
Antonio Logistics Center, Kelly Air Force Base, Texas and American Federation
of Government Employees, Local 1617, 51 FLRA 1624, 1630 (1996). As such,
the Agency's assertion provides no basis for finding the award deficient as
based on a nonfact. Accordingly, we deny this exception.

C. The Award Draws Its Essence From the Parties' Collective
Bargaining Agreement

Article 25, Section 6 of the parties' agreement states that "[t]he
arbitrator shall have no power to add to, subtract from, disregard, alter, or
modify any terms of this agreement." Exceptions, Attachment 2 at 127. The
Agency asserts that, in finding that the Union was entitled to official time
under the parties' agreement, see Exceptions at 5, the Arbitrator
modified the parties' agreement.

The Agency has not shown that the Arbitrator's determination with
regard to whether the grievants were entitled to official time under the
parties' agreement was irrational, implausible, unfounded, or evidenced a
manifest disregard of the agreement. SeeU.S. Department of Labor
(OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577 (1990).
In addition, the Agency's argument assumes that the Union did not adequately
justify its request for official time under the parties' agreement. To the
extent that the Agency's argument is premised on its disagreement with the
Arbitrator's factual findings, the argument does not demonstrate that the award
is deficient because the Authority defers to arbitral findings of fact.
SeeFederal Aviation Administration, SEATAC Airport, Seattle,
Washington, 52 FLRA 701, 709 (1996) (where an agency disagrees with an
arbitrator's factual findings, the Authority defers to the arbitrator's
findings of fact); see also, Lowry, 48 FLRA at 593-94 (the
Authority will accord deference to an arbitrator's factual findings).
Accordingly, we deny this exception.

D. The Award is Not Contrary to Law

In circumstances where an agency's exceptions challenge an award's
consistency with law, we review the questions of law raised by the agency's
exceptions and the arbitrator's award denovo. SeeNational Treasury Employees Union, Chapter 24 and U.S. Department of the
Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S.
Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

As noted above, the Hatch Act prohibits only Federal employees'
participation in political activities while on duty. In this regard, the
Arbitrator made factual findings that the 1996 conference encompassed
representational lobbying and training during duty hours, a political
endorsement by the Union and reelection speech by the Vice-President during
duty hours, and various PAC activities during non-duty hours. See Award
at 22-23. With regard to the 1997 conference, the Arbitrator made factual
findings that lobbying and training on representational matters took place
during duty hours, a "[PAC] function was scheduled outside normal working
hours," and "there is no indication of any time being devoted to political
endorsements." Id. at 23-24. The Arbitrator awarded official time only
for the duty hours that he found constituted lobbying and training on
representational matters. Seeid. at 23-24.

Although the Agency challenges the findings underlying the Arbitrator's
award, the Authority accords deference to an arbitrator's factual findings
because the parties bargained for the facts to be found by an arbitrator chosen
by them. SeeLowry, 48 FLRA at 593-94. In view of the
Arbitrator's factual findings, to which the Authority defers, the Agency has
not established that the activities for which official time was awarded by the
Arbitrator were "directed toward the success or failure of a political party,
candidate for partisan political office, or partisan political group."
5 C.F.R. § 734.101. As such, the Agency has not demonstrated that any
of the official time awarded by the Arbitrator encompassed activities falling
within the definition of "political activity" set forth in the Hatch Act's
implementing regulations. Accordingly, we conclude that the award is not
inconsistent with the Hatch Act and, therefore, we deny this exception.
SeeCorps of Engineers, 52 FLRA at 926-27.

2. The Award is Not Contrary to 18 U.S.C. § 1913

In Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local 3231,
11 FLRA 7 (1983), the Authority rejected an agency argument that 18 U.S.C.
§ 1913 prohibits Union representatives from conducting lobbying activities
on official time. More recently, in Corps of Engineers, 52 FLRA 920, the
Authority once again examined whether 18 U.S.C. § 1913 prohibits
the use of official time for union officials to lobby Congress. After
considering the plain wording of the statute, its legislative history, relevant
court decisions, and the administrative opinions of the Department of Justice
and the General Accounting Office, the Authority concluded that authorizing
official time for union officials to lobby on representational issues does not
violate 18 U.S.C. § 1913. Specifically, the Authority determined that
section 7131(d) of the Statute constitutes an express authorization to grant
official time for representational lobbying and, therefore, section 7131(d) is
an exception to the prohibition against lobbying contained in 18 U.S.C.
§ 1913. InOffice of the Adjutant General, New
Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301, 307 (1998)
(New Hampshire National Guard), the Authority affirmed its holding,
regarding the use of official time for representational lobbying under 18
U.S.C. § 1913, in Corps of Engineers.

In this case, the Agency has not provided any new arguments supporting
a conclusion that the granting of official time to Union officials to lobby
Congress violates 18 U.S.C. § 1913. Therefore, for the same reasons
set forth in Corps of Engineers, and reaffirmed in New Hampshire
National Guard, the award is not contrary to 18 U.S.C. § 1913.
Accordingly, we deny this exception.

V. Decision

The Agency's exceptions are denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. As defined by the Arbitrator, "[a]
no-cost travel order does not involve expense to the Agency, but enables the
traveler to obtain the benefit of Government rates for transportation." Award
at 3 n.1.

2. Article 25, section 6 provides: "The
arbitrator shall have no power to add to, subtract from, disregard, alter, or
modify any terms of this agreement." Exceptions, Attachment 2 at 127.